In August, I commented on the wrongful death suit that the Bavis family was bringing on behalf of Mark Bavis, who died as a result of the September 11th tragedy. The Bavis family alleged in its suit, which was brought against United Airlines and its security contractor, Huntleigh USA, that both entities were liable for the wrongful death of Mark Bavis because their negligence enabled five armed terrorists to hijack Flight 175 on September 11, 2001. Mark Baivs was killed as a passenger on Flight 175, which was the second plane to hit the World Trade Center. He was 31 years old.
The Bavis family’s suit was the last wrongful death suit, stemming from 9/11, to remain unsettled. The other wrongful death and personal injury claims which came out of the 9/11 tragedy had already settled over the years. However, the Bavis family, especially Mark’s twin brother, Mike Bavis, was adamant about not settling. The family cited a desire to expose the flaws in the airline’s security, and a desire to ensure that the airline and its security company were held accountable for its negligence as its motivation for pressing on with the suit.
In early September, Mike Bavis stated to the Los Angeles Times: “Our hope is that the legal system still can work the way it was meant. It’s unacceptable that my brother had to spend the last 21 minutes of his life in the type of situation that he had to. It’s unacceptable, given what we believe was known prior to 9/11 and the inaction by the airlines and the security companies. It’s what motivated us to stay strong through this test of will.”
Despite the Bavis family’s desire to see the case through to trial, the Los Angeles Times and the New York Law Journal reported that the family reached a settlement agreement on September 19th, 2011 with the Airline. Mike Bavis, Mark Bavis’ twin brother, who had been very adamant in his stance on continuing to peruse the lawsuit, explained the change in course the family was taking regarding the lawsuit in a public letter.
The letter states in relevant part: This change is the result of a recent ruling by the Honorable Judge Alvin Hellerstein. With the stroke of his pen, Judge Hellerstein very cleverly changed this lawsuit. The lawsuit was about wrongful death, gross negligence and a complete lack of appreciation for the value of human life. He instead made it a case about a federal regulation. He ignored 100 years of aviation law and relied on an environmental case to apply federal preemption. He essentially gutted the case so that the truth about what led to the events of Sept. 11, 2001, would never be told at trial.”
What Mike Bavis referenced in his public letter is the order and opinion of Judge Hellerstein, dated September 7, 2011. In Judge Hellerstein’s opinion, he rejected the plaintiffs’ request to have the state standard of care for negligence applied in the case. Instead, of applying the state negligence standard, which would require that the Airline and its security company acted reasonably in the circumstances, the judge instead only required the Airline to prove Substantial compliance with two federal regulations governing weapons screening and the prevention of violence and piracy would be enough to shift the burden to the plaintiff, requiring them to prove that the Airline was liable. This shift is what spurred the family to consider settlement. Donald Migliori, the family’s attorney, stated to the New York Law Journal that instead of allowing his clients a forum to tell their story as they wanted to tell it, “at the 11th hour, the judge decided to turn this into a federal regulatory claim.”
Although it is unsettling to see a family kept from seeing their case to trial as a result of a judge’s ruling that may have been detrimental to their case, I am glad that United Airlines took some responsibility and compensated the Bavis family for their loss. Although no life can be fully accounted for in economic terms, I am glad that the Bavis family finally got some closure, even thought they were not able to seek the redress they sought through the courts.